European Court of Human Rights

 

 

SECOND SECTION

CASE OF APOPII v. THE REPUBLIC OF MOLDOVA

(Application no. 32617/16)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

28 June 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Apopii v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Branko Lubarda, President,
          Jovan Ilievski,
          Diana Sârcu, judges,
and Hasan Bakırcı, Section Registrar,

Having regard to:

the application (no. 32617/16) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 25 May 2016 by a Moldovan national, Mr Nicolai Apopii (“the applicant”), who was born in 1993 and lives in Mihăilenii Vechi, and, having been granted legal aid, was represented before the Court by Mr V. Țurcan and Ms N. Țurcan, lawyers practising in Chișinău;

the decision to give notice of the complaint concerning Article 3 of the Convention to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari, and to declare the remainder of the application inadmissible;

the observations submitted by the respondent Government and the observations in reply submitted by the applicant;

Having deliberated in private on 7 June 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged lack of effectiveness of the investigation into acts of violence committed by private individuals against the applicant. The applicant complained of a violation of his rights under Articles 3 and 13 of the Convention.

2.  On the night of 3 to 4 September 2014 the applicant was apprehended by B., who claimed to have caught him stealing fish from his pond. According to the applicant, B. and his sons had beaten him until the police arrived and, thereafter, B. and his wife V. had also hit him several times.

3.  The following day the applicant sought medical assistance. His medical records show that medical examinations were conducted on 4 and 6 September 2014 by a neurologist, a traumatologist and a surgeon, who concluded that the applicant had suffered head trauma and chest and kidney contusion, but no rib fractures. On 9 September 2014 a forensic examination ordered by the police found around eight bruises of different sizes on his left arm, shoulder, neck and chest (with the largest ones on his chest, measuring 7 cm by 3 cm, and on his neck, measuring 8 cm by 2.5 cm); and multiple abrasions on his face, arms, back, chest and buttocks (with the largest one on his face, measuring 8 cm by 3 cm). The forensic examination concluded that there was no evidence of head trauma or kidney contusion, but that the applicant needed around six days to recover. On 30 September 2014, in reply to questions from the prosecutor, the forensic expert submitted that the injuries could have been self-inflicted.

4.  The applicant complained that he had been kidnapped and ill-treated by private individuals, including in the presence of police officers, but his complaint was rejected as ill‑founded on 6 October 2014. The prosecutor concluded that B. had acted lawfully when he had apprehended the applicant as he was stealing the fish and that only V. had slapped the applicant, an act in respect of which administrative proceedings had been initiated against her. The decision noted that the injuries on the applicant’s body could have been self-inflicted. On 5 February 2015 an appeal by the applicant was upheld and the procedure was reopened to clarify the discrepancies between the statements.

5.  After a cross-examination of all those who had been present at the scene, on 14 June 2015 the case was closed again on the same grounds as before. The decision was upheld by the hierarchically superior prosecutor on 29 July 2015. The applicant appealed against both prosecutors’ decisions, and on 2 December 2015 the Bălți Court of Appeal rejected both his appeal against the decision of 14 June 2015 on the merits and his appeal against the decision of 29 July 2015 as submitted outside the statutory time-limit.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

6.  The applicant complained under Articles 3 and 13 of the Convention that he had been ill-treated by private individuals, including in the presence of the police, and that the investigation into his allegations of ill-treatment had been ineffective.

7.  The Government submitted that the applicant had failed to exhaust the available domestic remedies because his appeal against the hierarchically superior prosecutor’s decision of 29 July 2015 had been rejected as out of time. The Court notes, however, that the domestic courts examined the merits of the applicant’s appeal against the decision of 14 June 2015 and that the decision of 29 July 2015 did not contain any additional information. Bearing this in mind, the Court finds that the national authorities, primarily the courts, were afforded the opportunity to prevent or put right the alleged violations of the Convention and that a conclusion to the contrary would be excessively formalistic (see Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 84‑89, 9 July 2015). The Court therefore dismisses the Government’s objection.

8.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

9.  The general principles concerning ill-treatment by private parties and the State’s obligation to investigate an arguable claim of ill-treatment have been summarised in Bouyid v. Belgium ([GC], no. 23380/09, § 86, ECHR 2015) and Ceachir v. the Republic of Moldova (no. 50115/06, §§ 42‑55, 10 December 2013).

10.  The Court notes at the outset that following the events of the night of 3 to 4 September 2015, the applicant sustained multiple contusions and abrasions on his head, neck and chest, from which he needed at least six days to recover (see paragraph 3 above). The forensic examination disregarded the diagnosis of head trauma and chest and kidney contusion established by the hospital doctors. However, the relatively large size and number of bruises and abrasions, as well as their location on vital parts of the applicant’s body, are consistent with his allegations of a violent assault on him on the night in question. According to the applicant, the assault had occurred in the evening and in an isolated place where any calls for help would appear to have been futile; this was bound to arouse in him feelings of helplessness and fear to a certain degree, diminishing his dignity, and was aimed at intimidating him (see, mutatis mutandis, Ceachir, cited above, § 47, and Beganović v. Croatia, no. 46423/06, § 66, 25 June 2009; and compare, as regards the injuries themselves, Mityaginy v. Russia, no. 20325/06, § 49, 4 December 2012, and, as regards their location, mutatis mutandis, Cazanbaev v. the Republic of Moldova, no. 32510/09, § 48, 19 January 2016, and Caracet v. the Republic of Moldova, no. 16031/10, § 42, 16 February 2016).

11.  The Government noted that the injuries had been minor, but did not question their extent and did not argue that they had not been sufficiently grave to fall within the scope of Article 3 of the Convention. Accordingly, the Court concludes that the violent treatment to which the applicant was subjected on 3 to 4 September 2015 reached the minimum level of severity under Article 3 of the Convention and gave rise to the respondent State’s positive obligations under that provision.

12.  The Government argued that a thorough investigation, including an interview of four police officers, had taken place in the course of the pre‑investigation inquiry, which concluded that the applicant had not been ill‑treated, other than having been slapped by V.

13.  The Court observes that the national authorities promptly initiated a preliminary inquiry into the applicant’s allegations, interviewing all those present at the scene. However, it does not appear that any criminal investigation was actually initiated to allow the collection of evidence (see Gasanov v. the Republic of Moldova, no. 39441/09, § 53, 18 December 2012, and Ciorap v. the Republic of Moldova (no. 5), no. 7232/07, § 62, 15 March 2016).

14.  The inquiry mainly focused on whether the applicant had been ill‑treated in the presence of the police officers and whether B. had acted lawfully. However, the inquiry did not attempt to establish the circumstances in which the injuries to the applicant’s body had occurred or, in the event that they had been caused by lawful actions of B., whether the use of force had been made necessary by the applicant’s own conduct (see, mutatis mutandis, Boris Kostadinov v. Bulgaria, no. 61701/11, § 53, 21 January 2016).

15.  In the course of interviews of all the witnesses, only B. submitted that the applicant had caused the injuries himself by throwing his body against the side of a minivan, where he had been waiting for the police. The prosecutor’s decisions, which relied on the opinion of the forensic expert, seem to suggest that the injuries were self-inflicted but they do not reflect any investigation into the question whether B.’s statements were corroborated by other witnesses or whether the applicant could himself have caused bruises of such size to different parts of his body in the circumstances described by B. At the same time, the applicant consistently complained that B. had ill‑treated him before and after the arrival of the police and he repeatedly requested the cross‑examination of the forensic expert, but to no avail. In 2015 the courts ordered the reopening of the case in order to clarify the discrepancies between the applicant’s and the witnesses’ statements. However, the cross‑examinations carried out subsequently were once again focused on the events which occurred after the police had arrived and on the lawfulness of the applicant’s apprehension by B., but did not seek to clarify how the injuries on the applicant’s body had been caused.

16.  The foregoing considerations are sufficient to enable the Court to conclude that the authorities failed to carry out an effective investigation into the ill-treatment suffered by the applicant. There has therefore been a violation of Article 3 of the Convention under its procedural limb.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to make any award on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 3 of the Convention under its procedural limb.

Done in English, and notified in writing on 28 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Hasan Bakırcı                                                   Branko Lubarda
                 Registrar                                                             President